Mr review 6 ignorance of law 6
The Development of Strict Liability
Download 0.58 Mb.
|
- Navigate this page:
- Public Welfare or True Criminal Offences
- R v Peirce Fisheries 1971 SCC p 384 [No MR because low stigma offence]
- The Emergence of Strict Liability
- R v Ellis-Don Ltd 1992 SCC p 415 [Regulatory offences/defences must be proven BYD to be consistent with s 11 D]
The Development of Strict LiabilityDifference between offences found in code and enacted by other levels of gov Issue: whether criminal law should require proof of something more than voluntary act/omission, or that alone should establish liability? Criminal law requires proof of guilty state of mind for “true criminal offences” For regulatory offences may be satisfied by proof of act Accompanied by no further fault requirement = absolute liability Accompanied by reduced fault requirement = strict liability R v Sault Ste Marie: held presumption that all regulatory offences would require prosecution to prove the prohibited act, but allow the accused to prove defence of due diligence or reasonable mistake of fact on a balance of probabilities Public Welfare or True Criminal OffencesBeaver v The Queen SCC 1957 [Possession (because it has a minimum sentence) requires MR/ knowledge that substance is a drug]Facts: Max sold to police officer undercover, he was a party to the sale of the package, did not have it on his person but was acting jointly with his brother, the appellant had no knowledge that the substance was a drug and believed it to be sugar of milk. TJ charged jury with having a package in possession and selling it. Said it was irrelevant whether he had knowledge of what it was, or whether he entertained an honest but mistaken belief of what it was. CA agree. Issue: Is this correct? Decision: Reason: (Cartwright J) 4(1)(d): any person who has in his possession any drug, except with license 4(1)(f): any person who manufactures, sells…a drug or any substance represented to be a drug So – would accused be guilty of crime of having drug in his possession if he didn’t know it was a drug? Quash conviction on charge of having possession No other crimes in code have minimum sentence of imprisonment and don’t require MR He is still liable for selling Fauteaux J: (Dissinting in Part) Provisions indicative of parliament giving the most efficient protection to public health against danger attending the uncontrolled use of drugs as well as incidental social evils Plain and literal meaning = absolute prohibition in possession of drugs If knowledge is necessary for this and s 17, then why did parliament provide for defence of lack of knowledge in s 17 and not this? Ratio: Possession requires MR/ knowledge that substance is a drug R v Peirce Fisheries 1971 SCC p 384 [No MR because low stigma offence]Facts: Accused charged with possession of undersized lobsters. Boat company on that day caught 50ks of lobster and fishery officer found 26 undersized lobsters. SCC allowed an appeal from an acquittal. Issue: Does he have to have knowledge that there were 26 lil’ lobbies? Decision: No MR because low stigma Reasons: Ritchie J: Act’s purpose is to protect lobster beds from depletion No stigma attached to offence In Beaver, found truly criminal offence through provisions of fed. Statute But little similarity btw statute of lobster and statute of possession Should be construed free from presumption of requirement of MR Cartwright CJC: Dissent: Principle of construction of statute which makes possession of forbidden substance = offence laid down by this Court (Beaver). Applying this to case at hand, R has no knowledge of forbidden lobsters R v Wholesale Travel Group Inc 1991 SCC [Strict Liability: Court upheld that BoP does infringe s 11(d) of Charter but justified under s 1 because make sense to impose BoP on accused in public welfare offences]Facts: Accused argued that imposing BoF on him violates s 11(d) of Charter. Court grappled w/ distinction btw true criminal offence and regulatory offence Sherras v De Rutzen 1895: held that MR presumption applied to true crimes, but did not apply to acts which are not criminal, merely for public interest. Regina v Sault Ste. Marie 1978: public welfare offences, although enforced as penal laws, are a substance of civil nature and are branch of admin law. Distinct because: The act is not inherently wrong, but unregulation would result dangerous conditions imposed on member of society. Deterrence and punishment of acts involving moral fault to the protection of public and societal interests. Regulatory offences directed to consequences of conduct, rather than conduct itself Importance Primary mechanism to implement public policy objectives Approximately 2000 regulatory offences/province, + 20k at fed level Ratio: Court upheld that BoF does infringe s 11(d) of Charter but justified under s 1 because make sense to impose BoF on accused in public welfare offences The Emergence of Strict LiabilityFor true crimes the BoF is Always on the Crown – even if it’s a defence, BoF lies on crown to disprove offence. SSM shifts the burden to the accused that they prove on a balance of probabilities that they were diligent, or operated under a reasonable mistake of fact. Types of defences available to strict liability offences: 1) Mistake of fact: it must be reasonable in the circumstances 2) Due diligence: did the accused do everything possible to prevent the offence/incident **R v City of Sault Ste. Marie (SSM)[Creates strict liability offences, Accused has onus of proving defence of due diligence]Facts: City charged that is permitted to allow depositing materials into Creek which would impair water quality Issue: Appeal concerned with regulatory offence of pollution Decision: New Trial , bc strict liability now exists Reasons:
Necessary to have high standard of public health and safety, contrasted with revulsion against punishing morally innocent Two predominate arguments to justify absolute liability 1) Protection of social interests require high standard of care/attention on part of those who follow certain pursuits, must take precautionary measures to avoid mistakes 2) Administrative efficiency = would clutter the docket Against Absolute liability 1) violates fundamental principles of penal liability 2) rests upon assumption that higher standard of care results – not proven 3) in sentencing evidence of due diligence considered, why not consider it in determining guilt Introduces STRICT LIABILITY: In past, two alternatives = 1) full MR or 2) absolute liability. But – increasing authority that offence does not require full MR, but MR is still defence = sensible “halfway house” In line with Ontario and Law Reform Commission Relieve crown of onus of proving MR and simply accused alone comes forward with evidence of due diligence Effect: to protect morally innocent from absolute liability punishment In future, to determine if offence falls in 3rd category (absolute), see if leg has made it clear that guilt follows merely of the proscribed act, look to precision of language. To determine if it falls into full MR = look to words of “knowingly, willfully,” to expressly import MR S 32(1) creates MR offence. Words “cause” and “permit” fit better into an offence of strict liability. R v Ellis-Don Ltd 1992 SCC p 415 [Regulatory offences/defences must be proven BYD to be consistent with s 11 D]SCC followed Wholesale travel and allowed appeal that held that s 37.2 of Occupational Health and Safety act, and the reverse onus under Sault ste Marie, violated s 11(d) of the Charter. CA held that reversal could not be justified under s 1 of the Charter S 11(D) implied proof of guilty BYD Unacceptable for someone o be convicted of offence when there is reasonable doubt- burden of proof cannot be “balance of probabilities” Defence of due diligence must be based byd Note: True Crimes -------- strict liability ------absolute liability SL has presumption of no MR If SL crime has MR wording, then you will have to prove MR If not overruled by Statute, then accused can avoid liability by proving mistake of fact/due diligence Burden of Proof always on Defendant (Common sense because D in better position than crown to prove) In AL = no MR, only need to prove AR Strict Liability Recap Crimes are FULL MR presumption (Crimes found in Criminal Code and drugs) Provincial Law CANNOT be Crimes Unless statute says otherwise, Crown must prove AR BYD Federal law CAN BE, but is not always a crime. Offences have a NO MR presumption With offences, presumption can be overcome with clear statutory wording With Crimes, we know that predicate offences (consequences) rebut the MR presumption Directory: cans -> 2014 cans -> Law 205: criminal law full Year can (2005-2006) Jennifer Lau cans -> Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code 2014 -> Charter + evidence 1 cans -> Law 120 criminal cans -> Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents cans -> Testimonial or documentary or real must be: Relevant cans -> Study Tip How to Improve Your English Pronunciation cans -> C’right: overview, 2 cans -> Table of contents section one an introduction to intellectual property Download 0.58 Mb. Share with your friends:
|